Should Broadcasters Sue Pirates?

In many respects, I feel sorry for FCC Commissioner Mike O’Rielly. He’s the #2 Republican on the five-member panel – the politically-weakest Commissoner. And he’s had to languish in the shadow of fellow Republican Ajit Pai, who’s commandeered the minority party’s bully pulpit on a plethora of issues ranging from journalistic independence to network neutrality.
So O’Rielly’s got to make a name for himself somehow, and he’s choosing pirate broadcasting as an issue on which to try. Last week, he published a blog post wherein he lays out some cockamamie suggestions on how to handle “the sourge” that is unlicensed broadcasting. Key to O’Rielly’s proposal is…the CAN-SPAM Act?
This 2003 law set the first national guidelines for the sending of bulk commercial e-mail. One of the Act’s provisions allows Internet service providers to file lawsuits against spammmers, provided they can meet a relatively high standard of evidence that: 1) identifies the sender or the agents who worked on the spammer’s behalf, and 2) the spammer knew their behavior was in violation of CAN-SPAM. Statutory damages range from $250 per spam-mail sent, with maximum damages capped at $2,000,000 per violation.
Unfortunately, the lawsuit option is not open to the everyday consumer (the recipients of most spam); folks like us must appeal to the Federal Trade Commission or state Attorneys General and hope they sue on our behalf. Since the law’s implementaton, there have been a spate of CAN-SPAM lawsuits — and the majority of them lose. The courts have also applied a notoriously narrow definition of what constitutes spammy behavior, and who has standing to sue, which only serves to dilute that aspect of CAN-SPAM’s enforcement effectiveness.
None of this matters to Commisisoner O’Rielly, who believes CAN-SPAM holds the key to broadcasters taking the reins in the fight against pirate stations — those ruffians who, in his worldview, “are similar to outlaws who rob a retail store and then sell the stolen inventory online.” He thinks providing broadcasters with an option to sue pirates would be no more or less effective than the potential to sue spammers: “locating mobile pirate operators, while difficult, is no more so than trying to locate the purveyors of unwanted spam who can be stationed anywhere in the world with Internet access and a server. If it can help in the case of spam, or even if it acts as a further deterrent, why not give it a try here?” Problem is, O’Rielly has no idea how difficult it is to actually identify spammers (it’s harder than DFing a pirate station), and he’s obviously ignorant of how CAN-SPAM’s lawsuit provision has actually performed in the real world.
Of course, O’Rielly is quick to add important caveats to his hare-brained scheme. First off, he’d rather you not look at this proposal as some sort of idea that the FCC is ceding any enforcement authority – allowing licensed broadcasters a private right to sue pirates would be just “one more tool in the toolbox” available to deal with unlicensed broadcasting. He’d also like you to consider this proposal outside the context of the agency’s ongoing discussions about decimating its field presence: “Few details have been made available to me regarding the field offices, and I was not a party to the plan’s development….Whether altering the field offices would further denigrate our enforcement efforts against pirate radio is a debate for another time.”
Not only is this proposal inane, it’s not even new. In 2013, the Massachusetts legislature considered a bill that would provide an avenue for licensed broadcasters to sue pirates — in addition to authorizing the commonwealth’s Attorney General to pursue its own injunctions and fines ($5-10K per case). First time around, the bill never made it out of committee; this session, it’s been resurrected and currently under consideration by the House’s Judiciary Committee.
It’s stuff like this that demonstrates just how out-of-touch many “expert” regulators are with the aspects of our lives that they ostensibly oversee. The fact of the matter is that pirate broadcasting has been part and parcel of the public airwaves since before there was an FCC, and after more than 100 years wouldn’t it be better to figure out new ways to make those airwaves more publicly inclusive?